On 14 May 2014 the draft Approval Bilateral Agreement (bilateral agreement) between the Commonwealth Government and the State Government was released for public comment.  The bilateral agreement seeks to create a one-stop shop for federal environmental approvals required under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) in Queensland.

The bilateral agreement will allow the State Government to assess and decide proposed actions that are likely to have a significant impact on a matter of national environmental significance (NES) under the EPBC Act.  The object of the reforms is to streamline environmental approval processes in Queensland and remove duplications between Federal and State requirements for proposed actions regulated by the EPBC Act.  It is hoped that the bilateral agreement will result in quicker decision making timeframes, simpler communication pathways and greater certainty for proponents and stakeholders. The aim is to have the bilateral agreement in place by September 2014.

In this Alert, Partner Sarah Macoun and Solicitor Thomas Buckley outline how the bilateral agreement is intended to operate for Queensland.

Bilateral Agreement

The EPBC Act is the Commonwealth Government’s central piece of environmental legislation.  Under this legislation, the Commonwealth is responsible for assessing and deciding whether to approve a development which may have a significant impact on a matter of NES, including important flora, fauna, ecological communities, Ramsar wetlands, marine parks and heritage places.  However, proponents must also comply with State legislative requirements, which results in an overlap and duplication of environmental assessment and approval processes and multi-government regulation of development.

Under the current bilateral agreement, the Commonwealth has accredited particular State environmental impact assessment (EIS) processes for addressing impacts on matters of NES.  However, separate decisions are still required by the Commonwealth and the State for the action.

The new bilateral agreement will, if signed, allow the State Government to assess and decide proposed actions that are likely to have a significant impact on a matter of NES without the need for a separate environmental approval to be issued by the Commonwealth.

The key points of the bilateral agreement are as follows:

  • It provides for accreditation of certain Queensland environmental assessment processes by the Federal Environment Minister for the purposes of the EPBC Act.  At present, the only assessment processes that will be accredited under the bilateral agreement are those that involve an EIS process.
  • Where an environmental assessment process has been authorised, the State Government will assess and decide proposed actions that are likely to have a significant impact on a matter of NES.
  • No separate Commonwealth Government referral, assessment or approval will be required for proposed actions that fall under an accredited process.
  • It is intended to cover approvals for coordinated projects under the State Development Public Works Organisation Act 1971 (SDPWO Act) and resource projects under the Environmental Protection Act 1994, but only where the project is subject to an EIS process.
  • It prescribes an escalation process for dealing with disputes or concerns between the Commonwealth and the State in relation to a project, which may include whether either party is of the view that an action may result in serious or irreversible environmental damage to a matter of NES.
  • It will not apply to a proposed action that has already been referred to the Federal Environment Minister under Part 7 of the EPBC Act before the bilateral agreement commences, unless that referral is withdrawn or lapses.
  • The Federal Environment Minister is vested with a residual power to suspend or cancel the bilateral agreement.

Accreditation of Queensland environmental processes

The State Government is presently seeking accreditation of the provisions of the SDPWO Act as an ‘authorisation process’ for the purposes of a finalised bilateral agreement with the Commonwealth Government.  This will be implemented through changes to the SDPWO Act introduced by the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Bill 2014 (Bill).

The Bill amends the SDPWO Act to adopt the Commonwealth EPBC Act responsibilities and enable the Coordinator-General to assess and authorise projects that may impact on a matter of NES under the EPBC Act.  Under the amendments, where the Coordinator-General has declared a project to be a ‘coordinated project’, it may also make an additional declaration which would allow the Coordinator-General to assess and issue an environmental approval for a matter of NES for the project.  The amendments will replace the need to apply for a separate environmental approval from the Federal Environment Minister under the EPBC Act.

Streamlining additional environmental approvals

The new bilateral agreement will only apply to assessment processes for projects that require an EIS process.  However, the bilateral agreement specifies that the State and Commonwealth are to work cooperatively to progress additional streamlining measures for other environmental assessment processes in Queensland.  In particular, this includes a commitment to consider expanding the scope of the agreement to cover approvals that could have an impact on a matter of NES issued under the Sustainable Planning Act 2009Nature Conservation Act 1992Water Act 2000 and theVegetation Management Act 1999.

Submissions

The bilateral agreement is open for submissions until 13 June 2014.  A copy of the bilateral agreement can be found here